Suing lawyers isn’t easy. While we won’t say the system is rigged, in some jurisdictions claims against lawyers have to be brought in as little as one year. And finding a local lawyer willing to sue another lawyer is nearly impossible unless you are in a big city.
We view every legal malpractice case we win as a big victory. But even a victory often doesn’t make the victim whole.
The goal of our civil justice system is to make victims whole but that rarely happens in legal malpractice cases. The reason is simple. Under the American justice system, each side is normally responsible for their own legal fees. That means if you win a lawsuit against your former lawyer and the jury awards you $100,000, expect your malpractice lawyer to take about 40% of that for his or her services. Sometimes more if there are lots of costs.
Lawsuits are not a great way to settle disputes but sometimes there is no choice. Assuming you are paying your lawyer on a contingency fee, part of any winnings go to your new lawyer for prosecuting the case.
So, what about punitive damages in legal malpractice cases? Recently we were asked, “Can I sue my lawyer for punitive damages?” The answer is yes, although getting punitive damages is tough.
Legal malpractice occurs when a lawyer breaches the standard of care owed to you. Simply because your lawyer lost your case doesn’t mean your lawyer is guilty of malpractice. In every case there is a winner and a loser. Merely losing isn’t enough to allege malpractice.
If your lawyer misses a critical deadline, fails to conduct adequate discovery or falls asleep in your trial, you may have a malpractice claim. Mere malpractice, however, isn’t enough for punitive damages.
Legal Malpractice and Punitive Damages
Punitive damages are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Many people think bad lawyers should be “punished’ but that isn’t the law.
The law on punitive damages varies widely from state to state. Some states require permission of the court to even seek them. Many states cap punitive damages. Despite the difference between states, almost everywhere the victim must prove the defendant’s conduct was particularly outrageous. And punitive damages are almost never allowed in breach of contract cases.
Recently a federal bankruptcy judge in new York City ruled a failed restaurant could seek punitive damages against Attorney Robert Berman and the law firm that employed him.
Blue Dog was the operator of a café on Park Avenue. Things between the cafe and its landlord deteriorated even before the café opened its doors. The café ultimately went bankrupt.
The landlord brought an action within the bankruptcy court against Blue Dog. Like most lawsuits, the court issued a scheduling order listing all the important deadlines in the case. One of those deadlines was for the parties to select and name expert witnesses.
Both parties were represented by lawyers. The court gave Blue Dog more time to identify expert witnesses and complete discovery. Like the first deadline, the new deadline came and went with no experts named.
Blue Dog claims its lawyer didn’t even hire an expert until the day after the extended deadline expired. Another expert that had been hired before the deadline was never named either. Ultimately the landlord asked the court to strike Blue Dog’s experts because they were late. The court agreed.
Although still in bankruptcy, Blue Dog fired its original attorney and brought a legal malpractice claim. The café claimed that its lawyer’s failures to make timely expert witness designations rendered it unable to prove liability and damages at trial and severely weakened its position in settlement discussions.
Assuming their lawyer missed the deadline to name expert witnesses, that certainly sounds like malpractice. Ordinarily it wouldn’t be so outrageous as to warrant punitive damages, however.
There is more to the story (of course).
As the malpractice case dragged on, Blue Dog learned some startling things about Berman, their prior lawyer. According to the café,
“Blue Dog alleges that in July 2016 other partners at Seyfarth Shaw [the law firm] expressed disappointment and concern and reprimanded Mr. Berman for having led them to believe that Mr. Berman had scheduled depositions when in fact Mr. Berman had not done so. Blue Dog also alleges that at some time prior to December 2016 Seyfarth and its partners concluded that Mr. Berman’s handling of various matters was disappointing, that Mr. Berman was “dangerous” and that he was hurting the firm and its clients. Seyfarth allegedly decided to remove Mr. Berman from all client files with the exception of Blue Dog’s action against the Landlord.”
Is that outrageous? On October 30th, 2020, U.S. Bankruptcy Court Judge Michael E. Wiles ruled that if true, the allegations were serious enough to allow Blue Dog to seek punitive damages.
Obtaining punitive damages in New York is tough. According to Judge Wiles,
“The standard for imposing punitive damages is a strict one and punitive damages will be awarded only in exceptional cases . . . The conduct justifying punitive damages must be egregious tortious conduct manifesting spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.”
Interestingly, the court suggested that the law firm’s reprimand of Berman and the fact that they never told Blue Dog of their concerns probably wasn’t enough to warrant punitive damages. What tipped the scales was the firm’s decision to remove Berman from all of his other cases except Blue Dog’s case.
Juries typically don’t like lawyers. That the court has allowed a punitive damage claim to go forward probably means the case settles favorably for Blue Dog. In New York, there are no caps on punitive damages meaning the jury could really send a message if they believe Blue dog and believe the law firm’s conduct was outrageous.
Are You the Victim of Legal Malpractice?
Lawyers are human and make mistakes. There is no reason to suffer simply because a lawyer’s mistakes cost you money. To learn more about your rights, visit our legal malpractice information page. Ready to see if you have a claim? Contact us online, by email [hidden email] or by phone 877.858.8018.
All inquiries protected by the attorney – client privilege and kept strictly confidential. We consider cases where the loss is $500,000 or more.